A reference librarian
whose work included assisting self-represented litigants with their appeals
yesterday lost his own pro per appeal from the rejection of his wrongful
termination action against the trustees of the San Diego County Public Law
Library.

Div. One of the Fourth
District Court of Appeal affirmed an order by retired San Luis Obispo Superior
Court Judge Barry Hammer, sitting on assignment as a San Diego Superior Court
judge.

The visiting jurist
granting summary adjudication on Michael Kaye’s claims for violation of the
state Constitution’s “liberty of speech” clause, the statute governing
employment of law librarians, the California False Claims Act, and the Ralph M.
Brown Act after his federal free speech claims were removed to U.S. District
Court.

Kaye’s difficulties,
Presiding Justice Judith McConnell explained, arose in February 2006 after he
was informed by another library employee that the Administrative Office of the
Courts was seeking a representative of the library to serve on a panel at a
conference on self-represented litigants.

Kaye asked for approval
from library Director Robert Riger, who approved his attendance. That approval
was later questioned by Kaye’s supervisor, Joan Allen-Hart, who was out ill
when the request came in but said that as a matter of protocol, it should have
been funneled to her or to Riger, rather than to Kaye.

Response to Inquiry

Riger asked another
library employee to look into the matter. Kaye, upset at the inquiry, removed
himself from the panel, and later sent out an e-mail complaining that reference
librarians were being treated as “fungible and disposable peons who are not
genuinely valued.”

He complained that
schedules were being arbitrarily changed; that he had been assigned to serve on
a committee in which he had no interest; that he was the obvious choice to
represent the library at the conference; that he had been subjected to a
“vindictive, retaliatory, accusatory investigation”; that the conduct of Riger
and Allen-Hart was “disgusting, degrading, and utterly unprofessional”; and
that Riger was planning to attend the conference himself, even though he was
not on a panel and was not a court officer or employee, and that he might be
trying to collect expenses to which he was not entitled, in violation of the
California False Claims Act.

Kaye was notified the
next day that he was being placed on administrative leave, and was notified two
weeks later that Allen-Hart and Riger were seeking his dismissal for
“insubordination and serious misconduct.”

Former Trustee

An attorney who was a
former library trustee was selected to conduct a pre-termination hearing,
following which Riger terminated Kaye. When Kaye submitted a “post-termination
administrative appeal,” the matter was heard by the Board of Trustees, which
found that the manner in which Kaye had raised his complaints was
“intentionally calculated to disrupt the office, undermine the authority of the
Director, and impinge upon working relationships within the Library.”

McConnell agreed with
the trial judge that Kaye’s complaints about an internal matter were not
protected by the state Constitution. In doing so, she adopted the U.S. Supreme
Court’s analysis in Garcetti v. Ceballos (2006) 547 U.S. 410 and rejected Kaye’s
argument that the state Constitution conveys broader rights with respect to
employee speech.

The Supreme Court held
that government employees are not entitled to free speech coverage for things
they say in the scope of their jobs, and McConnell noted that “California courts have routinely
followed [U.S.] Supreme Court
precedents in addressing public employee free speech matters.”

“The undisguised
purpose” of Kaye’s missive was to air his personal grievances about the
inquiry, not to prevent Riger from collecting public money that he was not
entitled to, the jurist concluded. In order to obtain whistleblower protection
under the CFCA, she said, “the employee must have reasonably based suspicions
of a false claim and it must be reasonably possible for the employee’s conduct
to lead to a false claims action.”

Financial Motivation

Kaye’s suggestions about
Riger’s possible financial motivation “were insinuations based on speculation
and inaccurate assumptions about the approval and funding for Riger’s
conference attendance,” and could not reasonably have led to a false claims
action, the presiding justice wrote.

McConnell further swept
aside Kaye’s arguments that he was fired in violation of the law library
statute or the Brown Act.

Under Business and
Professions Code Sec. 6345, she explained, a law library employee serves at the
pleasure of the trustees. Even if Kaye was correct in asserting that Riger had
no power to fire him, the trustees’ action was independent of Riger and
complied with the statute, McConnell wrote.

Kaye’s Brown Act claim
was based on the presence of an outside attorney at the closed meeting at which
he was terminated. McConnell, however, explained that the act allows public
boards to meet in closed session to discuss employee discipline, absent an
objection by the employee, and that boards are allowed to have their legal
counsel present during such meetings.

The case is Kaye v.
Board of Trustees of the San Diego County Public Law Library, 09 S.O.S.
6453.